Tarbell v. Downer

29 Vt. 339 | Vt. | 1857

The opinion of the court was delivered by

Isham, J.

The question under the first plea in bar arises, whether an action of debt can be sustained on a judgment of the county court after the allowance of exceptions, and while those exceptions are pending in tlie supreme court. The statute, 225s secs. 43, 48, provides that on the allowance of exceptions, whether execution is stayed or not, the case with its original files and papers shall pass to the supreme court for decision on all questions of law arising upon the trial of any issue of fact by the court or jury. It has never been considered that the judgment of the county court was vacated by the allowance of exceptions. It still remains a final and Valid judgment in that court until reversed or affirmed in the supreme court. The allowance of exceptions simply enables the supreme court, sitting as a court of -errors, to revise the decisions of the county court on questions of law. The case is passed to the supreme court for no other purpose. In this state exceptions are regarded as being in the nature of a -writ of error, and have the same effect -on the judgment on which they are allowed. In Bao. Abg. tit. Error 479, it is said-: “ It seems clearly agreed that an action of debt may be brought upon a judgment, notwithstanding a writ of error brought in the exchequer chamber; for though such a writ of error he a supersedeas to the execution, yet the duty remains upon record, and it is but reasonable the party should have this remedy for his damages for forbearance.” The order for the stay of execution .on the allowance of exceptions is the same as a -supersedeas on a writ .of error ; it merely affects the execution, and not the judgment. The provision of the statute authorizing the allowance of exceptions, but providing that execution shall not of course he stayed, contemplates the case that without a special order for that .purpose the party may enforce his judgment by the usual -remedies given by law; and. if he may take out execution while exceptions are pending in the supreme court, it would seem to follow necessarily that an action of debt can be sustained. The facts set forth in this plea in bar we think constitute no defense to this action.

In the second plea in bar it is averred, and admitted by the demurrer, that on the allowance of exceptions in this case no order for the stay of execution was made. It is also averred that an execution on that judgment was issued and placed in the hands of a legal officer for collection, and that the execution was levied upon the defendant’s property both before and after the commencement of this suit. But it is not averred that the levy of the execution was upon property, either real or personal, sufficient to satisfy the amount of the judgment. The mere fact that a judgment has been rendered, and that the party may take out his execution on that judgment at any time, will not bar an action of debt on that judgment. It was so held in the case of Clark v. Goodwin, 14 Mass. 237, in which the court observed that “ An action of debt may be maintained on a judgment though execution might issue thereon; ” and such have been the decisions in this state. Neither will the fact that the execution has been placed in the hands of the officer affect the right of the plaintiff to sustain this action, provided no act has been done which operates as a satisfaction of the judgment. If the person has been arrested and committed it has been held that no action on the judgment can be sustained; 2 Tyler 201. In some cases a presumption of payment or satisfaction of the execution will arise, if it has been issued and is not returned, or the presumption is not otherwise rebutted; 12 Vt. 72. But no such presumption can arise upon the facts admitted by this demurrer. The demurrer to the plea admits the levy of the execution on property, but as it is not averred that the property is sufficient to satisfy the execution, no satisfaction is admitted or claimed in the case. The levy will operate as payment to the extent that it produces satisfaction, and it constitutes a defense only to that extent; but it is not a bar to the action. The special pleas in bar are therefore adjudged insufficient.

Judgment affirmed.